| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 75 |
| Hearing date | 13 Mar 2017 - 14 Mar 2017 (2 days) |
| Determination date | 15 May 2017 |
| Member | D Appleton |
| Representation | R Donnelly ; L Wenborn |
| Location | Invercargill |
| Parties | Coomer v JA McCallum & Son Ltd |
| Summary | UNJUSTIFIED DISADVANATGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by respondent’s actions - Applicant claimed unjustifiably dismissed by respondent - Incapacity and return to work - WAGE ARREARS - Applicant sought wage arrears - Whether applicant undertook work during rehabilitation on voluntary basis - PENALTY - Applicant sought penalty for respondent’s failure to provide a written employment agreement. |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANATGE - UNJUSTIFIED DISMISSAL: Applicant did not allege discrimination so Human Rights Act 1993 cannot assist. Applicant’s brain injury required a careful and clear communication style during meeting which respondent failed to provide. Applicant unjustifiably disadvantaged. Although sceptical, respondent showed willingness to explore solutions. Problems arose because of applicant’s single minded wish to return on basis of promise made by respondent a year earlier. Promise not unconditional and applicant’s injury more serious consequences than anticipated. Respondent did not breach duty of good faith in relation to exploring return to work for applicant. No dismissal. REMEDIES: $8,000 compensation appropriate.;WAGE ARREARS: Activities undertook by applicant during rehabilitation did not constitute work. Applicant chose when to turn up, his presence not necessary and other staff available to do work. No arears of wages.;PENALTY - Applicant never signed employment agreement so no signed copy for respondent to retain. Respondent retained unsigned copy. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($8,000) ; Application dismissed (unjustified dismissal)(wage arrears)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - ERA s6(2) - ERA s63A(2)(a) - ERA s64(1) - ERA s64(2) - ERA s64(4) - ERA s103A - ERA s106 - ERA s106(1) - ERA s124 - Human Rights Act 1993 s29 - Human Rights Act 1993 s35 - Minimum Wage Act 1983 s6 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] 2 NZLR 415 (CA);Idea Services Ltd v Dickson [2009] ERNZ 116 (EmpC) |
| Number of Pages | 23 |
| PDF File Link: | 2017_NZERA_Christchurch_75.pdf [pdf 318 KB] |